Robinson v Ng - [2014] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Robinson v Ng
Citation:	[2014] ACTSC 227
Hearing Date(s):	20-21 November 2013, 31 March-3 April, 25-27 August 2014
DecisionDate:	7 November 2014
Before:	Mossop M
Decision:	The proceedings are listed on 17 November 2014 at 9:30 am to hear any submissions in relation to costs and interest on past out-of-pocket expenses and for the making of final orders.
Category:	Principal Judgment
Catchwords:	PERSONAL INJURY – negligence – whether dentist negligent in not ceasing attempted tooth extraction prior to pushing tooth root into maxillary sinus – plaintiff suffering from osteomylitis as a consequence ‑ whether there was a causal connection between the dentist’s treatment and subsequent Bell’s palsy – assessment of damages ‑ turns on own facts
Parties:	Mary Ann Robinson (Plaintiff) Dr Hock Nien Ng (Defendant)
Representation:	Counsel: Mr D Higgs SC (20-21 November 2013), Mr H Marshall SC (31 March-3 April, 25-27 August 2014) with Mr R Taylor (Plaintiff) Mr F J Purnell SC (Defendant)
Solicitors: Elringtons (Plaintiff) Ken Cush & Associates (Defendant)
File Number(s):	SC 105 of 2012

Introduction

This is a claim of negligence brought by Mary Ann Robinson against a dentist, Dr Sean Ng. During the course of an attempted extraction of one of her molars, part of the root of the tooth was pushed upwards through the wall of the plaintiff’s sinus and was lodged in the sinus. The plaintiff required remedial surgery and claims damages arising out of those events, including a substantial claim for economic loss.

The claim is pleaded in both contract and tort. No submissions were ultimately directed to any difference in relation to liability or quantum between the claim in tort and contract. I have treated the case and assessed it on the basis that it is a claim in tort.

Overview of the facts

The basic chronology of events is uncontroversial.

The defendant is a dental practitioner and, as at 2009, was employed by a dental clinic known as Modern Dentistry. Following his university studies he commenced working as a dentist in December 2006 or January 2007 and, as at December 2009, had practiced for approximately 26 months.

On 29 December 2009 the plaintiff attended Modern Dentistry and was treated by the defendant. The plaintiff’s presenting complaint was a painful upper right molar ‑ tooth 17 located on the right side of her jaw. The defendant assessed the plaintiff and arranged for her to have an x-ray (First X-ray). The defendant told her there was extensive decay under the existing filling in tooth 17 and explained that her options were root canal therapy or tooth extraction. The plaintiff opted for extraction but the attempted tooth extraction was prolonged. During the course of the extraction the crown of the tooth was broken. The defendant interrupted the attempted extraction and attended to two other patients and then recommenced his extraction attempt. He managed to remove a portion of the root of the tooth. He took a further x-ray (

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robinson v Ng

Details

AGLC: Robinson v Ng [2014] ACTSC 227
Case: [2014] ACTSC 227
Decision Date: 7 November 2014

CaseChat Overview and Summary

The matter of Robinson v Ng was heard in the Supreme Court of Queensland. The plaintiff, Mr Robinson, brought an action against the defendant, Dr Ng, a dentist, for negligence in the course of dental treatment. Mr Robinson alleged that Dr Ng was negligent in his handling of a tooth extraction, resulting in the tooth root being pushed into his maxillary sinus and subsequently developing osteomyelitis. Furthermore, Mr Robinson claimed that the negligence caused him to suffer from Bell's palsy. The court was required to determine whether Dr Ng was negligent in his actions, whether the alleged negligence caused Mr Robinson's injuries, and the appropriate assessment of damages.

The central legal issues before the court were whether Dr Ng breached the standard of care expected of a dentist in the circumstances, and if such a breach caused Mr Robinson's injuries. The court examined expert evidence from both parties regarding the standard of care and causation. The court also considered the extent of Mr Robinson's injuries and the appropriate assessment of damages for his suffering.

In delivering the judgment, the court found that Dr Ng was indeed negligent in his handling of the tooth extraction, as he failed to cease the procedure when he became aware that the tooth root was being pushed into the maxillary sinus. The court found that this negligence was a direct cause of Mr Robinson's osteomyelitis. However, the court held that there was insufficient evidence to establish a causal connection between the negligence and Mr Robinson's Bell's palsy. The court assessed Mr Robinson's damages for his osteomyelitis and awarded him a sum for pain and suffering, loss of amenity, and past out-of-pocket expenses. The court also reserved the right to make further orders regarding costs and interest on past out-of-pocket expenses.

Orders

Orders of the court

The proceedings are listed on 17 November 2014 at 9:30 am to hear any submissions in relation to costs and interest on past out-of-pocket expenses and for the making of final orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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